Overview
In a discovery order dated yesterday, Judge Kaplan ruled (among other things) that Bank of New York Mellon could claw back a privileged email that it had inadvertently produced. The order acknowledges the realities of large-scale document productions in which mistakes will be made “more often than desirable”:
The fact that the document as originally produced was partially redacted superficially could be said to cut against the inadvertence finding, as the limited redaction demonstrates that someone initially paid attention to the privilege issue and made a decision as to what was and what was not privileged. Given the fact that this was one of 71,000 redacted documents produced and the realities of document review in cases like this one, which often involve hundreds of thousands or even millions of documents, one cannot be blinded to the fact that mistakes are made more often than is desirable. The Court chalks the production of the scantily redacted copy of this document up as a mistake, doubtless by a young lawyer or paralegal who perhaps was not sufficiently briefed or suffering from fatigue borne of too many hours in front of a computer monitor. In any case, there certainly is no basis for concluding that the unduly limited redaction was "completely reckless."
